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Lord Thomas of Gresford: My Lords, I have already spoken at length about the fundamental objection to multiple hearsay. If multiple hearsay is to be used as evidence of the facts, then it is impossible to challenge it.

I shall not weary the noble Baroness further because she knows of my objection. I also thank her for our discussions this morning. Perhaps the noble Lord, Lord Hodgson, could have attended the meeting if he had known about the change of time. I look forward to a fruitful outcome of those discussions.

7.15 p.m.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord and the noble Baroness for the co-operative way in which they have addressed these issues. These meetings undertaken by all sides have proven to be very fruitful, providing an opportunity for us better to explain to each other the differences that were made clear in Committee. So I can make the confirmation indicated by the noble Lord, Lord Hodgson, in moving the amendment.

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The purpose of Clause 104 is to limit the circumstances in which an out-of-court statement will be admissible when it is considered to be multiple hearsay; in other words, it is there to prevent so-called "tittle-tattle" going in as evidence.

I am very sympathetic to the concerns that the rule, as it is currently expressed in the Bill, is difficult to understand. I have been persuaded by noble Lords that the clause is insufficiently clear, but removing it from the Bill entirely would have the effect of leaving no rules to govern admissibility of multiple hearsay, thus leaving it subject to no safeguards at all. I know that noble Lords join me in not wanting that as a consequence.

In other words, by removing the clause, it would become possible for a chain of out-of-court statements to go in as evidence where each statement in the chain qualifies for admission in its own right, such as when a statement made by someone who has subsequently disappeared includes details of a statement made by someone who has died. We are, I believe, all agreed that multiple hearsay of this kind is inherently more dangerous and unreliable than first-hand hearsay, where the speaker has personal knowledge of the fact stated.

Clause 104 is taken from the Law Commission's draft Bill on hearsay. As noble Lords know, that reflects the commission's conclusion that most multiple hearsay is too unreliable to be admitted as evidence, but some of it can safely be used, such as when it is in business documents, while some should be admissible where it is sufficiently reliable and would prevent injustice

The problem with the clause appears to be that the circumstances in which this would happen are not expressly stated. I recognise that this would make it difficult for practitioners to operate the scheme. We have therefore been giving some thought to how we can redraft the clause to achieve greater transparency so that everyone can understand when it could be admitted. Such a clause would also reflect appropriate safeguards in relation to the admissibility of this kind of hearsay. I propose to bring forward a revised clause at Third Reading with the aim of trying to address the concerns expressed by noble Lords. I shall let noble Lords have sight of it in advance; that is, as soon as it is made available to me.

This revised clause will make clear that Clause 99, which allows evidence to be admitted where a witness is unavailable for good reason, will not operate to allow a chain of such statements to be admissible. However, where the hearsay is admissible in a reliable form, such as in a business document or in a previous statement of a witness who is in court to give evidence and can therefore be questioned on the statement, we consider that the evidence should be admissible.

In the light of that reassurance, I hope that your Lordships will feel content to let Clause 104 stand part of the Bill.

Lord Hodgson of Astley Abbotts: My Lords, I am extremely grateful to the noble Baroness. She has certainly fulfilled all that I asked for in my remarks. We look forward to hearing about the progress of further discussions on the redraft. In the mean time, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Clause 119 [Repeals etc]:

Baroness Scotland of Asthal moved Amendment No. 196:

    Page 75, line 1, leave out subsection (2).

On Question, amendment agreed to.

Clause 125 [Purposes of sentencing]:

Baroness Anelay of St Johns moved Amendment No. 197:

    Page 77, line 32, leave out "must have regard to" and insert "is under a duty to consider"

The noble Baroness said: My Lords, we now return to what is now Part 11, covering all the issues around sentencing. In Clause 125, the Government propose to set out in statute the purposes of sentencing. The clause states that the court must "have regard to" those purposes when it comes to deal with an offender. My amendment would change the words "have regard to" to,

    "is under a duty to consider".

I note that my noble friend Lord Carlisle of Bucklow is in his place. The reason I tabled this amendment was as a result of listening carefully to my noble friend's contribution in Committee. I thought that it was important to return to the comments he made on that occasion. My noble friend said:

    "No part of the clause says what weight is to be given to any of the particular purposes of sentencing. One might perhaps say something like, 'have in mind the following purposes of sentencing', or, 'must be aware of the following purposes of sentencing', rather than, 'must have regard', which implies that any sentence must meet all those six purposes when they may in some cases be self-contradictory".—[Official Report, 6/10/03; col. 47.]

I agree.

As my noble friend said, the Bill gives no guidance to sentencers as to how the various factors are to be weighed, especially where they may be in conflict. The implication of the words "have regard to" is that any sentence must meet all six purposes which, in practice, may be impossible. That is why I have brought forward an amendment which makes it clear that the purposes of sentencing in the Bill are to be considered by the courts but that they are not under a duty to meet all of them in any particular case.

The Minister said:

    "It is right that, when a sentencer comes to consider the sentence, all those factors are born in mind".—[Official Report, 6/10/03; col. 49.]

If my amendments are accepted, the purposes of sentencing would still have to be born in mind, as the Minister requires, but the potential difficulty of the words "have regard to", to which my noble friend Lord Carlisle drew attention, would be removed.

If the Government are minded to reject my amendment today, I suggest that they may need to spell out to the House in some detail how they propose that sentencers should approach the task given to them under Clause 125. That request is also made by Justice in its briefing to the House. What should sentencers do when they are of the view that one or more of the purposes are in conflict?

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As I said in Committee, the noble and learned Lord the Lord Chancellor stated at Second Reading that,

    "It will be up to sentencers to determine what weight to accord to each in a particular case".—[Official Report, 16/6/03; col. 561.]

If that is the Government's approach, why can it not be made clear on the face of the Bill? I beg to move.

Lord Dholakia: My Lords, Amendment No. 179A is grouped with the amendment. We were much impressed by the representations made to us by the Prison Reform Trust. The proposal to define the purposes of sentencing in legislation is the cornerstone of the sentencing framework and obviously requires very close scrutiny.

The construct in Clause 135 provides for a "pick 'n' mix" approach to sentencing, with no single underpinning philosophy coming to light. As such, it will prove over reliant on a mass of guidance in its search for coherence and consistency. We much prefer the model outlined in the Halliday report, which referred to the "desert" theory. This emphasises the need to link severity of punishment with seriousness of offence and culpability of the offender so as to be proportionate and commensurate. The desired outcomes of consistency, and therefore fairness and justice, dominate in this model. Fixing levels of severity in relation to levels of seriousness is a very key issue.

Justice has also made representations to us on this issue. It said that the Halliday report noted these findings and others and also noted the weakness of the evidence in favour of the incapacitative effect of sentencing, and hence the proposal that neither deterrence nor incapacitation should be relied upon as a justification for sentencing.

Our proposal would retain the primary overall aim of the youth justice system—the prevention of offending by children—while reinforcing and clarifying the necessary safeguards for children and better compliance with children's human rights obligations. If accepted, the amendment would ensure that, when passing sentence, the courts would have regard to the welfare of the child in order to best respond to their vulnerability. Those are the reasons for the amendment.

Lord Carlisle of Bucklow: My Lords, my noble friend said that the amendment was based on something I said in Committee. I am grateful to her for that comment. I am afraid that I cannot now bring to mind immediately what I said in Committee, but it is clear—and this is what I must have said—that the matters referred to in Clause 125(1) can be self-contradictory. It is wrong that the court "must have regard to", for example, the punishment of offenders because that may be contradictory to being required to have regard to the reform and rehabilitation of offenders and the court could be drawn in two different directions. I suggest that it would be better if the word "must" should be discretionary or replaced by the word "may", as the amendment proposes. I hope I have correctly repeated what I said in Committee—my noble friend will tell me—and I therefore support the amendment.

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